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The “S*** List” Fights Back

The “S*** List" Fights Back

A “shitty media man” is suing the woman who began a list of shitty media men.

From The Cut:

Stephen Elliott, a New Orleans–based writer is suing Moira Donegan, the creator of the Shitty Media Men List for libel and emotional distress. Elliott filed documents at the United States District Court for the Eastern District of New York on October 10 and is seeking at least $1.5 million in damages.

“Upon information and belief, Defendants conspired to create the Google Spreadsheet entitled ‘Shitty Media Men’ and circulated the link to the List via email, without password protection, for the stated purpose of encouraging the female recipients to anonymously publish allegations of sexual misconduct by men,” reads the complaint. “The wholly unsubstantiated allegations published in the List, particularly with regard to allegations about Plaintiff, contained numerous false statements alleging criminal sexual conduct on the part of Plaintiff.”

Last fall as the #MeToo movement went into full-swing, an editable Google Doc began making the rounds, on which women could anonymously add the names of men they knew within the media world who had engaged in sexual misbehavior. Titled bluntly “Shitty Media Men”, the list contained dozens of men accused of anything from verbal innuendo to actual rape.

Ordinary Times’ own Sam Wilkinson wrote about The List, the justification for its existence, and the fall-out, here and  here.

From January:

One of these lists was the Shitty Media Men list, a list documenting the behavior of some men in the media. These men were being categorized by threat. The list specifically categorized these men from crude remarks to rape and everything in-between the two. The list was a simple Google Sheet. It was created in an attempt to document abuse and protect others from it. It was a digital manifestation of the sort of whisper network that women have used in the past to protect themselves from men who can rightly be understood to be predators. The original list existed for twelve total hours before being taken down, although other, ongoing versions of it remain. The original list included a warning that claims were not corroborated, and it was subdivided into its own categories of behavior. It totaled 70 men, with 14 of them noted to have been accused of sexual assault and/or rape.

The list’s existence was immediately controversial. Buzzfeed published about the list’s existence within hours of its creation. Others followed up. All of this occurred as monsters like Harvey Weinstein, Matt Lauer, Bill O’Reilly and so many more tumbled from the perches that been built for them. The Shitty Media Men list made it clear that the issues went far deeper than those at the top of proverbial pyramids. The problems were everywhere and pervasive and the women who filled in that list’s cells knew about them. But without a meaningful way to deal with them – when human resource departments cannot be trusted to give a damn, and when management structures cannot either – things like Shitty Men in Media become necessary.

The identity of the person who initially created the list remained a secret until January of 2018, when word spread that Harpers intended to publish an article revealing the author’s name. To get ahead of the outing, writer Moira Donegan confessed herself the creator in an essay published in The Cut.

Donegan and the list faced both harsh criticism and accolades. Critics decried the damage done to reputations based on anonymous allegations; others cheered the women coming forward to warn their colleagues of danger and hold abusive men accountable, and cheered Moira for facilitating. Most of the names were unfamiliar to those outside of the media industry, but by all accounts The List created much upheaval. Some men lost their jobs.

And yet, they remained largely silent. Perhaps it was owing to the low profiles of most of the names on the list, but there was a marked absence of indignant public denials by the accused. Most objections were simply on abstract principle.

It was not until September, eleven months after the list appeared, that one of the accused men made a prominent public denial. Stephen Elliott, accused in the list of rape, published 2600 words professing his innocence. He couldn’t be a rapist, he explained, because he does not willingly participate in penetrative intercourse. And this week as the clock ran on the statute of limitations to do so, he sued Moira Donegan.

Elliott’s lawsuit claims damages for libel and emotional distress, alleging personal and professional fallout from his inclusion on the list. Due to the anonymity of the list’s contributors, Elliott named multiple “Jane Does” in his complaint, a common practice in torts when a plaintiff cannot ascertain the identity of the defendant. His pleading states his intention to issue subpoenas to Google to obtain the names, addresses, and other identifiable information regarding the list’s contributors. The lawsuit, and Elliott’s plan to “dox” and expose the women who anonymously added to the list, were met with the expected mixed reaction, from cheers of encouragement to Elliott for “fighting back”, to, of course, GoFundMes for both parties.

Presumably, Elliott’s lawyer has explained to him that truth is an absolute defense to a defamation claim. That means that the defendants can prevail if they prove that the allegations are not false – which can be accomplished by establishing a pattern of bad behavior. To that end, these tweets could be problematic in Elliott’s efforts:

No doubt he will also have to contend with this article, published two years before the list made the rounds, accusing Elliott of inappropriate sexist and misogynistic behavior.

The availability of Elliott’s prior bad acts as a defense notwithstanding, does his lawsuit have a chance? The honest and time-honored, learned lawyer response is “it depends.”  Libel cases like his hinge on very technical questions of law, the answers to which are extremely fact dependent, and it is far from cut and dried. Donegan created a spreadsheet; is she responsible if someone adds lies to it (assuming they are lies, which is also not yet proven)? What about the fact that a note right at the top of the sheet cautions readers to “take the contents with a grain of salt”? Does that provide cover to Donegan? And what about the Elliott entry itself, which falls short of being a rape accusation, but rather a claim that Elliot has been the subject of rape accusations. Is that mitigating?

And then, there is the question of damages. It appears his reputation was not stellar prior to his inclusion on “Shitty Media Men”. How much was he actually damaged? He blames the lackluster performance of his latest published work on the list as well. Is there measurable correlation?

In addition to the legal wrangling, it seems Elliott will likely also face difficulties in identifying his accusers; Google has reportedly vowed to fight any attempt by Elliott’s legal team to subpoena the user information they intend to seek. Furthermore, Google maintains that this information very likely has already been purged and no longer exists.

Defamation suits are notoriously difficult cases on which to prevail. However, despite these obstacles, one can hardly blame Elliott for choosing to file his lawsuit in this post-Kavanaugh period, when cries for “due process” for men accused publicly (but not legally or criminally) of sexual misconduct are at peak. Elliott is shrewd to take advantage while these sympathies bend in his favor.

To be sure, an innocent man finding his name next to allegations of rape or sexual impropriety would rightly feel outrage, devastation, or some mixture of the two. But the list was never meant to be publicly damaging, let alone a viral sensation; it was to be circulated quietly among colleagues, as a way of arming women in media with knowledge of who to avoid and where to be cautious. It is a strong unlikelihood that Elliott, or any other man on the list, would have preferred these woman go to the authorities with their stories. But then again, maybe they would have.

Due process, and all.


Senior Editor
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Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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100 thoughts on “The “S*** List” Fights Back

    • The fact that they did not is of note to me. Doing so opens a plaintiff to pretty intensive and personal discovery and deposition. And, of course, there’s the fact that truth is an absolute defense.

      Then again, one may consider the current climate, in which a man may feel he is better off remaining silent and hoping it blows over than refuting and denying the allegation, and risk being painted as an enemy of women and the MeToo movement and blackballed from his industry more than he may already have been.

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  1. What caught my attention is that this list “specifically categorized these men from crude remarks to rape and everything in-between the two.” and this guy responded that he isn’t a rapist. There are enough steps in between that much might have been lost in translation, but on its face that seems a notable non-denial denial. How was this guy categorized on the list?

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    • His entry read “rape accusations, sexual harassment, coercion, unsolicited invitations to his apartment.” It was also highlighted in red, which denoted “men accused of physical sexual violence by multiple women.” So, it was a pretty strong allegation.

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  2. Some thoughts:

    1. He is probably enough of a name to be considered a public figure. This means he needs to meet the actual malice standard by clear and convincing evidence. The issue is certainly one of public interest. IIRC from my first amendment class in law school, the Supremes have a broad definition of public figure;

    2. Did any one warn him about discovery being a two-way Street?

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  3. Those cheering this – no doubt people like Andrew Sullivan are particularly excited by it – literally want to deny women the right to warn one another about dangerous men. It isn’t enough that the scales of the justice system are tilted wildly in favor of abusers; it isn’t enough that the culture’s perceptions are titled wildly in favor of abusers; it has to be that women are prevented even from speaking about what has happened to them.

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    • Luckily defamation cases present a high burden to the plaintiff. Of course, judges make incongruous rulings all the time, that’s why we have appeals courts. And if they start applying the laws in a way that makes women civilly liable for damages just for telling their friends about an attack or inappropriate behavior, surely that would be appealable, all the way to the Supreme Court where—

      Oh.

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    • “Those cheering this…literally want to deny women the right to warn one another about dangerous men.”

      This statement is only accurate if there are no other options for these women to warn one another. It’s intellectual laziness to assume that the first, most inelegant solution is the best one and then get mad when people poke holes in it.

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      • This statement is only accurate if there are no other options for these women to warn one another.

        No, it’s accurate as long as all other options suffer the same threat of lawsuit as this one.

        Which they would. Asserting to others that someone has been accused of rape presents the same liability however it is done. It is libel or slander, regardless.

        It’s intellectual laziness to assume that the first, most inelegant solution is the best one and then get mad when people poke holes in it.

        This solution was only inelegant in that it was _traceable_. They should have come up with an encrypted system that couldn’t be traced back to any individual creator. A peer-to-peer system where each node just copies date to the next, and it’s basically impossible to tell where each entry comes from.

        Note this wouldn’t have made the system more ‘legal’. Any liability would have been exactly the same. It would have simply made it harder to sue someone over.

        Saying ‘Those women can still warn each other about dangerous men if they _break the law better_’ is extremely dubious.

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    • Those cheering this – no doubt people like Andrew Sullivan are particularly excited by it – literally want to deny women the right to warn one another about dangerous men.

      I probably like the other side of this debate less than you do, but you undermine your own cause with this.

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      • Sullivan made it clear that boorish male behavior that did not rise to the level of criminal activity – rape, in other words – should not have appeared on the list. Women, he implied, must be prepared to endure that, no matter what it might include, up to the point of criminality. Although he later apologized for doing so – after being rightly pilloried for it – he included as boorish things like removing a condom during sex without permission, something he did not consider to be at all problematic. In Sullivan’s argument, women should not warn other women about this kind of behavior. Removing a condom during sex is, as Sullivan puts it, “a minor offense.” It was thus unfair and unbecoming to document it, and if it was not criminal, it should not go documented. That seems like an entirely bogus claim, especially considering what we know about unbelievably useless the justice system actually is at adjudicating actual criminal activity. Women do not owe men an endurance of their bullshit no matter what Sullivan is willing to excuse away with a wave of his hands.

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        • “Women, he implied, must be prepared to endure that, no matter what it might include, up to the point of criminality. “

          No, this is Sam implying because he thinks there is only one right answer to every question.

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          • Sullivan is factually accurate though, correct? Secretly taking a condom off during consensual sex might be a shitty thing to do, but it’s not workplace misconduct. Once again, it’s the blurring of those lines that concerns everyone so much.

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                    • When the system offers no remedy, or an inadequate remedy, vigilantism* is a common result. Vigilantism is a symptom, and it will be a problem until the system is fixed.

                      *Such lists are hardly what I’d call vigilantism.

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                    • So we’re at the point of justifying vigilantism now.

                      Good Lord, Mike, your insistence on being the defender of sexually inappropriate behavior by men is baffling. It’s appears knee-jerk from you at this point, which is disappointing because I have viewed you a thoughtful commenter.

                      What are we women to do? If we don’t tell anyone, then we are liars and “not credible” when our story does come out. If we do tell, we are “vigilantes”. And the dismissal of these womens’ claims as “bad behavior in the bedroom” is galling, especially if you think surreptitiously removing the agreed-upon condom counts as mere bad behavior (and I’m not clear you think that, but if you do… gross.)

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                      • Em,

                        This isn’t a knee-jerk thing on my part. I’m not excusing bad behavior by men. What I am saying is that I don’t approve of is something that amounts to an extrajudicial sex offender registry. As I recently wrote, actual legal sex offender registries are incredibly problematic already. Why would I ever endorse one that has zero oversight, no due process, etc?

                        I get that women are looking for recourse in a system that has repeatedly let them down but the easiest solution is not always the best one. I’m very much a rule-of-law conservative. I like structure. My job is based on ensuring compliance to federal regulation and industry standards within my company. With that said, I won’t pretend that the legal system is not deeply flawed. But two wrongs do not make a right and I believe a public list like this has great potential for harm. The historical mistreatment of women does not justify that harm IMO.

                        I will also say that a big part of the reason why I am concerned about #metoo and the justification of presumed guilt, is that innocent people are ultimately going to be harmed by this. If we’re talking specifically about a guy sleeping with a coworker and allegedly taking a condom off without permission, do we know any other details? Were they drunk? Could it have simply been a miscommunication? Those are the details that don’t get considered when an extrajudicial process is taking place. And do women ever sometimes just plain ol’ lie about things? Yes.

                        I will also say, for the men who are falsely accused in the workplace, shame on them for letting themselves get put in these situations. Long before #metoo I learned a few things about how to be a manager and not set myself up for accusations. My personal rule is to never let myself be alone with a female coworker and especially with subordinates. Period. I don’t take business trips alone with them, I don’t have closed-door meetings with them, I don’t go out for meals with them and I never, ever get in a car alone with one of them. Increasingly, even with male subordinates I don’t like to have conversations without a witness. Too many times they have completely mis-remembered what I told them which is why I always have a written memo prepared and stick to that script. When I was in my 20s and single, I also never, ever slept with girls that had been drinking with the exception of some long-term girlfriends who I trusted (and in hindsight even that was probably a bad idea).

                        So…I get why you read my comments and think that I am coming to the defense of terrible men and trying to take away a tool women have to defend themselves. All I can say is that I want to see the justice system dramatically improved, but I can’t approve of this kind of response in the short term.

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                        • “something that amounts to an extrajudicial sex offender registry”

                          I get what you are driving at, but I don’t think this was that. This is just modern day girl talk about who to avoid and who is dangerous, the Google Doc format just being the modern version of something that has gone on as long as their has been mankind. If it was a company or judicial list then sure, but this was peer to peer, and effectively the same type of speech as gossip, and you cannot and should not be trying to regulate or criminalize that, however unseemly or damaging it might be.

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                              • Geez I forgot what a bad reader you were… Let me help. This was Andrew’s comment which I was replying to (bold text mine):

                                “This is just modern day girl talk about who to avoid and who is dangerous, the Google Doc format just being the modern version of something that has gone on as long as their has been mankind. If it was a company or judicial list then sure, but this was peer to peer, and effectively the same type of speech as gossip…”

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                        • Oh my God, this comment.

                          By the way, I’m not a lawyer, but taking a condom off without consent is sexual assault, and watching someone dismiss it as possibly a result of drunkenness or miscommunication makes me wish that blogs had block features. Hilarious that it comes in a comment that begins with the commenter describing himself as a law and order conservative.

                          Also, calling a list warning other women of bad behavior “vigilantism” is disgusting. Fear of “innocent” men being unfairly accused in a list never meant to be publicized is pretty ripe coming from someone who has, in the same comment, dismissed the sexual assault on a presumably innocent woman (and by this assertion, is pretty much dismissing all of the claims on the list).

                          Whew.

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                          • “Better that a thousand women be harassed or assaulted because they weren’t warned of patterns of behavior than that one man be falsely accused of making inappropriate advances in the workplace.” -shorter Rule-of-Law Conservative

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                          • The Left has always been better than the Right at taking up the cause of the wrongly convicted. Overturning bullshit prison sentences was the achievement that I think Obama should be most proud of and the thing I respected him the most for. Which leads me to wonder why not putting much stock in an unproven allegation on a spreadsheet means someone is dismissing a sexual assault claim?

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                            • It’s a spreadsheet, meant to warn women of bad behavior. It was meant to serve no other purpose. You dismiss it as vigilantism and fear men being falsely accused, without offering a way for women to warn each other, as they have done for decades in ways less prone to becoming public (e.g., famously, in bathroom stalls).

                              I’m all for due process, and think that the Innocence Project and related projects are Godsends, but we’re talking, again, about women warning each other about the bad behavior of men. If a man is falsely accused, he doesn’t need to worry about going to jail; he just has to behave like a decent person.

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                                • I didn’t excuse it. I suggested there are two sides to every story. Again, our justice system assumes innocence. The term ‘reasonable doubt’ exists for a reason, correct? I still don’t understand the logic that says anything other than full acceptance of a woman’s story the moment she tells it means you are permissive of sexual assault? I mean, I get that liberals are not a patient bunch, but what happened to due process?

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                        • Then what *DO* you approve of? How many people is it ok for a woman to tell that she has been violated? 1? 2? 10? Any who she knows may find themselves alone with the perpetrator?
                          Or are their only acceptable options 1) subject themselves to the justice system, or 2) STFU forever?

                          Is there EVER a point at which you believe the decision of a woman to speak out (extrajudicially) is of greater weight than the risk to a man’s reputation?

                          Emmitt Till was an awful tragedy, but the issue at heart of that case was much more one of evil racism than false rape allegation (it was both, of course, but that the false allegation was driven by racism is the more insidious evil of it).

                          And just a word I’ve wanted to mention with regard to the reported occurrences of false allegations: Many of those studies include in the category of “false allegations” acquittals, charges dismissed by the prosecutor, and cases in which the victim decides not to prosecute or ceases to cooperate with the prosecution- none of these are tantamount, on their own, to falsity. Proven lies are much rarer than the numbers make them out to be. And on top of that, there are no doubt “recantations” that themselves are false, done either by coercion, weariness at the process, or other reasons besides it not actually happening.

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                          • Or are their only acceptable options 1) subject themselves to the justice system, or 2) STFU forever?

                            For starters I would suggest women work within their companies to create actual rules around social interaction. You don’t date coworkers. You institute a rule of three so you don’t have people spending time alone. You put up lots and lots of cameras. Put microphones in rooms and record conversations. It’s no different than what we are asking for from law enforcement with body cameras (something I support). My group just fired an employee for putting their hand on another coworker’s arm during an argument and this was only possible because it was caught on film.

                            Also, while I generally frown on extrajudicial anything, if this was a public accusation made by someone using their own name, I would be slightly more permissive. It’s the same reason why I have advocated for years that we not allow comments on this site unless people use their full legal name.

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                            • You know Mike, your comments here today had me trying to remember how you responded to my own story that I published here a few weeks ago. So I went back and looked, and you didn’t respond at all.
                              That’s curious. You’re not obligated to, of course, and I would be egotistical to expect you to comment on my every post. But you have so much to say on these abstract opinion pieces or commentaries on the latest related news, yet radio silence at a personal story shared outright? You claim to have no knee-jerk reaction to defend the accused and question the accuser, yet no words to offer a survivor sharing her story? Is that because you don’t find me credible either? Or do your sympathies only lie with those poor accused men, and not the women who are telling you they were hurt?

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                              • Firstly, I honestly didn’t see the post. My stepping down from editorial duties meant I was not getting new post notifications for several weeks, which Will helped me fix yesterday.

                                With that said, all I would have said was that I am sorry that happened to you.

                                There is a big difference between responding directly to someone telling their story and engaging in a debate as part of a national conversation when the victim is not actually taking part in that conversation. Your story leaves much less room for debate than Fords, but even if it didn’t, I certainly would not have chosen that comment thread to have that conversation. Maybe that makes me a hypocrite for debating Ford’s story on this site but being unwilling to challenge a fellow writer, but so be it. Maybe that is also why we should all be having less conversations with strangers on the internet and more conversations with real people in person.

                                I guess I could also tell my story of being accused of assault, being forced to plea to a lesser charge and the several years it took to get my record cleared and my terrible experience with the court system…but other people I care about would be harmed by that public conversation so i won’t do it. Maybe that also means you are braver than me for telling your story.

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                          • Em Carpenter: Or are their only acceptable options 1) subject themselves to the justice system, or 2) STFU forever?

                            Alrighty you all win.

                            Short answer – no. Long answer – it’s complicated.

                            I can’t possibly do this subject justice in a comments section. As much as I’d rather be lifting or writing about making the kinds of godly gains most other 45 year olds don’t, I need to respond to your post in full. Stay tuned.

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                        • All I can say is that I want to see the justice system dramatically improved, but I can’t approve of this kind of response in the short term.

                          ‘short term’? So you think there’s a solution in the _long term_?

                          Can you come up with a justice system in which (for an example of something that is technically a crime but almost never even charged) a man who repeatedly grabs at women’s rear when no witnesses are present is punished? Or even determined guilty?Even as a hypothetical?

                          How would such a system work? What sort of process should we have to determine that men are officially grabasses? I’m not worried about the punishment per se, just getting to the point of labeling of the woman’s claims as ‘proven accurate in court of law’. Since you’re worried about the ‘extrajudicial process’, what sort of judicial process do you want for that?

                          There really are three options here as society: We either come up with a way to do that within the legal system, we allow women to publically warn each other, or we absurdly someone cap ‘how much’ they can warn each other, say that some level of gossip is fine but not if it…uh…reaches everyone who would logically need to be warned if true. So we only allow _ineffectual_ gossip.

                          If you can’t come up with a way to do the first, and you don’t like the second, you’re voting for the third. You can’t just *magic wand* a hypothetical better solution that is somehow going to happen in the future.

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                            • The most obvious problem is that there will always be situations the cameras do not cover. I have no idea what industry you work in, but a lot of corporate interaction happens in non-corporate settings. The media industry, quite obviously, is one of them. What about a male reporter who, when he goes out in the field with women producers and camera people and whoever, likes to paw at them? He’s just smart enough not to do it in the TV studio with running surveillance.

                              And on top of that the shitty media list wasn’t just corporate interactions. It was men _in that industry_, but nothing limited it only to bad behavior that happened on the job.

                              What about situations where men in the media get grabby on _dates_?Do women get to warn each other about _that_, that if you go on dates with Media Personality, he likes to grab your ass when walking next to you without invitation? In fact, even with a surveillance camera, how are you going to prove that wasn’t requested?

                              She can’t prove it wasn’t consensual, she doesn’t get to tell anyone? Or if she does, they don’t get to tell anyone?

                              And, I’m just curious, but you don’t seem to be addressing the first amendment issues at all.

                              Slander and libel laws _also_ have a presumption of innocence…maybe the women can’t prove it happen, but that also means the men can’t prove it _didn’t_ happen, and thus, legally, the allegation can’t be proven to be a falsehood, which is required for it to be libel.

                              How come the presumption of innocence applies to the men being accused of sexual assault, but _not_ to the women being accused of libeling the man about sexual assault? She has just as much presumption of innocence as he does.

                              The weird thing is, as I’ve said before, eventually, personal cameras will render almost all crime nonexistence. But that’s several decades away, and saying ‘Women have to not spread rumors about men until they can document them with video evidence’ is nonsense.

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                              • So there are men that can behave badly and it’s very hard to prove, so therefore women create extrajudicial lists and then they get sued for libel, which is incredibly hard to prove.

                                I guess the playing field has been leveled. Except, the douchebag men are still going to behave badly without legal repercussions and women will still get harmed. And innocent men will still occasionally get slandered so that sucks for them and their families too. So, it doesn’t really sound like the needle got moved at all here.

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                                • Based on your comments, I’m not convinced it would make any difference if the women did report it to authorities and pressed charges. Unless there was video and eye witnesses, I’m afraid you’d still be here lamenting the damage to the poor guy’s life.

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                                  • That’s ridiculous. I said explicitly here that I prefer to work within the judicial process. If women are reporting these crimes my expectation is that law enforcement do everything they can to close the case one way or the other.

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                                    • Sorry. I can absolutely picture you here in these comments sections, in a he said/she said case, complaining how awful it is that a prosecutor would ruin a guy’s life over such little evidence.
                                      I really don’t believe you would have preferred that the women who contributed to the list would have pursued criminal charges instead.
                                      Seems to me those consequences would be much worse than what’s happened here.

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                                      • Isn’t it the job of a prosecutor to decide if there is enough evidence to take a crime to trial? I trust them to make that call. It’s unusual for me to have someone on this site accuse me of not wanting to use the legal system, considering how often I defend the police. My grandfather was a detective at one point in his career. I have a friend who just retired as a detective specifically doing SVU type cases. Why wouldn’t I trust their work?

                                        I guess I could flip this and say you dont want to see these go to trial because you dont believe the justice system will take care of these women, so you prefer an extrajudicial system of mob justice? Is that fair?

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                                        • I like you Mike. I normally find you a reasonable and measured conservative here. But on this issue, you go to the mat over the idea that a man’s reputation is more important than the safety of women, and I don’t get it. I don’t get it at all.
                                          Yes, you’re normally mr. law and order, defender of the police. But I’m to believe that these stories you find dubious or not credible become suddenly less so because a prosecutor believes them?
                                          And what about the shitty man who hounds a woman to come to his hotel room, follows her around a conference center, not letting up on his badgering, to the point she hides under a table to avoid him… no law has been broken. The courts can’t help. But you think it’s unfair for her to warn others who may encounter him that hey, this man is a sex pest, avoid him if you can?
                                          What about the butt grab scenario posed above… it’s a battery at best and probably not worth the trouble that the court system puts people through to report it. But “hey ladies, watch out for this guy, he doesn’t keep his hands to himself” is inappropriate?
                                          I’m waiting for a right now, actionable suggestion of how you think women should handle these things. The long game of changing work policies is not immediately helpful, nor is it practical- who do you report the rules violator to if the violator is the boss?

                                          I think you’re overzealously protective of the reputations of men as compared to the efforts of women to keep themselves and their peers safe.

                                          As for the risk of libel suits, I think the fact that only one man out of 70+ took action is telling- and my suspicion is that’s because the absolute defense of truth.

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                                          • Don’t you think it’s a bit patronizing to characterize this as simply an effort to protect men’s reputations? If only that was the only thing to worry about. I’m worried about men going to jail.

                                            * REDACTED *

                                            There are more and more cases every year of men being released due to wrongful convictions. Not all of these are sexual assault. As I noted earlier, liberals have always been better at finding justice for these people. I was raised Catholic and have always opposed the death penalty, but once I was old enough to understand these statistics on wrongful convictions, I became even more adamant about how wrong it was. We talk about how even one wrongful execution is too many. It appears that standard is much lower for sexual assault.

                                            Despite what happened to me in the 90s, i was very lucky. I was white, had a clean record, a good lawyer and the money to fight. If I was poor, or a minority, or both…i doubt I would have gotten off so lucky. Perhaps you are familiar with the Bail Project? There was a good interview with its founder on NPR the other day. This bit particularly struck me:

                                            “…if you are black or Latino and cash bail has been set, you are two times more likely to remain stuck in that jail cell than if you were white. Now, imagine for just one moment that it’s you stuck in that jail cell, and you don’t have the $500 to get out. And someone comes along and offers you a way out.

                                            Just plead guilty, they say. You can go home, back to your job. Just plead guilty. You can kiss your kids goodnight tonight. So you do what anybody would do in that situation. You plead guilty whether you did it or not. But now you have a criminal record that’s going to follow you for the rest of your life.”

                                            I think the real point of discussion in this conversation should be just who is the target of these extrajudicial efforts to warn women about predators in their midst. When you marginalize concerns as just men trying to protect the reputations of other men, don’t you really mean that white middle class men can handle the occasional false accusation? And you are probably right there. I did.

                                            Look at the examples here. Men working in media. Men at work conferences or on business trips. Sounds fairly upscale and privileged to me. But what about the minorities who might be falsely accused? And what about when #metoo moves beyond sexual crimes and into other areas of the law? I mentioned Emmett Till earlier and you said that it was tragic but the false allegation was a symptom of racism. Fair enough. What were the false allegations against me and my girlfriend symptoms of? Mental instability? Jealousy? Unwed pregnancy? Probably all of those. It doesn’t matter what the root cause is, wrongful convictions for any crime should be something we are all concerned about. Again, I don’t understand why liberals who usually champion the cause of justice for these people are suddenly looking the other way. Unless they only imagine people like Harvery Weinstein and not men like Fred Clay, Corey Williams, Andre Gonazalez or Wilbert Jones. Is this whole cause just a strike against the patriarchy and you all will just ignore the collateral damage for minorities/poor who don’t have the resources to keep this only a matter of reputation?

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                                                • A list like that is the definition of hearsay, no DA is going to bring charges based on the information in the list alone. They might open an investigation, because they are going to need much more than the list, and even then they will only be interested in claims with lots of information & complaints (provided they can ID the women, who are anonymous).

                                                  At most, an employer might take action against a person named in the list, but even that is iffy, since it would risk a lawsuit.

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                                            • Ha. I’ve got you beat with a false accusation of kidnapping, rape, and attempted murder! ^_^

                                              Fortunately in my case the police thought the whole thing was ludicrous and let me go, though I got a restraining order filed against me, got fired, and my brother showed up with a couple of thugs with orders to shoot me (in the legs if possible). To the girl, the event was just a pretty ordinary Sunday night because she was bipolar and crazy and did that kind of thing fairly often. One night I had to chase her down and found her out in front of a black fraternity screaming the N-word at them, before she went inside to party with them.

                                              Her housemate had months earlier falsly accused one of my friends, who she had just broken up with, of breaking and entering. He was a school teacher at a military academy and the police showed up at his work place. I think he might have gotten fired over it.

                                              I quickly deduced that it was actually my housemate who had broken into her house, he being her former boyfriend. Her dog recognized the intruder (didn’t bark) and he ripped the elbow of his sweater breaking out a window pane in her door. At that point, the girl thought the whole thing was funny because it showed her former boyfriend still cared enough – to break into her house. Needless to say, she didn’t lift a finger to clear my other friend’s name.

                                              Of course any one of us could’ve gone to prison for five or ten years and had our whole lives destroyed, not that either of those girls would care in the slightest. It’s just who they are.

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                                            • Don’t you think it’s a bit patronizing to characterize this as simply an effort to protect men’s reputations? If only that was the only thing to worry about. I’m worried about men going to jail.

                                              Wait—what? I thought you said you would prefer they use the court system? “Use the court system not the list because using the list may lead to the court system”?
                                              Your argument makes no sense now. And fails to address all the non-criminal abhorrent behavior that women are still well within their rights to warn others about.

                                              Don’t gaslight me with the “but think of the minorities” line. I do not need the flaws of the criminal justice system explained to me—I was a prosecutor and then a defense attorney for even longer.

                                              This is pointless. You’re going to keep pushing back the goal posts on this, and I’m sure your stubbornness on this comes from your past experiences. I’m sorry you went through that.

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                                              • I realize it looks like I am contradicting myself so let me try to clarify… Even though the justice system failed me, I still believe in it conceptually. My solution after my experience was to educate other men I knew that were in a similar situation (young, volatile relationships, etc) and I also made a point to never vote for a female judge and encouraged those men to do the same thing. In family court, joint custody is now much more the norm, which is awesome. With regards to criminal court, I actually think i was a bit of an anomaly back then in that my side of the story was so completely dismissed. It feels to me like #metoo may make that more of the norm.

                                                With that said, my concern with these lists is that they become this living thing where women can record anything they want, there is no oversight, no verification and when women see they can also use it to make false claims, it encourages them to make false claims through the actual justice system. Basically, it lowers the bar for proof.

                                                Think of as the way that social media has facilitated much more severe forms of bullying because of the anonymity. Think about the things that people say to each other on this site. Most of those things would never happen in person because someone would get punched. I truly feel like the behavior of the most radical folks on both sides of the aisle is getting worse because their digital behavior is starting to become their real-life behavior. I worry the same thing would happen with lists like this. False claims become false charges.

                                                And we are all a product of our experiences…right? My experience makes me stubborn. I would assume that the PC thing is to say that your experience makes you determined?

                                                As for gaslighting and minorities, c’mon. We both know #metoo is aimed at middle and upper class white males. Liberals aren’t picturing poor minorities when they are talking about this issue. Kavanaugh is the poster boy. White, upper middle class, well-educated, a jock, a bro…that’s what #metoo is about.

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                                                • As I suspected from the beginning, your opinion comes from your default assumption that these women are liars. Are you a member of the MRA? If not you should look into it, seems right up your alley.

                                                  And we are all a product of our experiences…right? My experience makes me stubborn. I would assume that the PC thing is to say that your experience makes you determined?

                                                  I don’t know if you are referring to my status as a rape survivor, or as an attorney who practiced criminal law for over ten years… but that doesnt matter because…

                                                  I also made a point to never vote for a female judge and encouraged those men to do the same thing.

                                                  We are extremely DONE here. Wow.

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                                                    • Unconscionable. Seriously. That someone would actually admit their misogyny like that is refreshing, though. So good on him for that, I guess.
                                                      I give everyone the benefit of the doubt that they are arguing from a good place. I’ve now been disabused of this notion. That’s disappointing.
                                                      I was unaware of the ignore feature. I probably won’t use it because I have serious FOMO. But wow, wow, wow.

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                                                      • In the 90s the biggest Topic in our local Family Court was deadbeat dads who weren’t paying child support. It was a serious problem here and I’m glad that they went after those guys. At the same time it was also well known that the pendulum has swung so far with the family court that decent father’s could not get a fair shake. The reason I stopped voting for female judges was because I was encouraged to do so by a friend and female public defender. She is one of the most liberal people I know and she told me at the time that she dreaded having a male client go in front of a female judge in Family Court. I don’t know how else to describe that. Other than to call it activism, and I still believe my voting habits were justified. Kids need both parents.

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                                                        • I don’t care what a handful of judges you dealt with did. I don’t care what your “liberal” friend told you.
                                                          You are telling me that me being female renders me incompetent for a job within my profession. You are wrong, you are sexist, and that is a misogynistic opinion, no matter how you try to spin it. End of story.

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                                                          • I only voted for judges in Jefferson County, KY where I was told and experienced a problem with judicial activism. Philip is right that the general attitude of Courts during that period was unfriendly to Father’s, but my experience and the opinion of several lawyers I talked to was that it was specific to the female judges in Jefferson County.

                                                            If someone was telling the story of how they fought hard during the 80s to put more women on the courts, would you applaud that or think it was an unnecessary effort?

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                                                            • I generally don’t believe in elevating or refusing to elevate anyone based on gender. But if the angle is “hey, let’s campaign hard for these great, competent women to be judges because if we don’t they will likely be disregarded simply for being women”, then I’m ok with it.

                                                              There are dozens of factors going into custody decisions, not the least of which is minimizing disruption to the child. I routinely had clients who wanted one week on/one week off custody schedules, which is ridiculously destabilizing and stressful on kids and not usually viewed favorably by courts. Then there is continuity of care- who has been doing bedtime and kissing booboos and scheduling doctor’s appointments and helping with homework? Is the situation such that “fairness” to the other parent warrants upheaval?

                                                              But I’m sure that absolutely none of these factors applied to you. The only factor at play was that your judge had a vagina.

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                                                          • This is now more personal discussion than policy/politics. Debating experiences is a street to no where. I both know of a female family court judge who it was known a male parents was going to be ruled against every single time, and was for a decade. I also have had sole custody of my daughter since she was 6 mths old (now 15) despites harassment, false accusations, and 30-odd court appearances over the matter. If I was to make a blanket judgement on the legal system based solely off either of those experiences I would have a false sense of the truth. Combined it tells me how complicated, and yes flawed, the system is, but every experience is different, every judge is different, every court system has its quirks that are different. Respectfully, “All X is bad because Y happened to me…” is not an argument, it’s a declaration, and there is no point attempting to hash it out further.

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                                        • I guess I could flip this and say you dont want to see these go to trial because you dont believe the justice system will take care of these women, so you prefer an extrajudicial system of mob justice? Is that fair?

                                          I forgot to address this.
                                          It’s more accurate to say that I’m painfully aware of why they don’t want to go that route and so I see this peer-to-peer warning system as an option. I refuse to call it mob justice or vigilantism because that’s hyperbole, and the consequences to the accused do not appear to me to be particularly grave.

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                                        • Think of it this way, if men are seriously disturbed by women maintaining lists of guys who can’t behave around them, then the solution is simple; men can modify the various systems so they can address these issues in a more just manner.

                                          Think of it as an incentive to start being creative.

                                          As for men’s reputations, women have been putting up with men attacking their reputations for no good reason for, what, centuries? I’m pretty sure men will find a way to weather the storm.

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                                    • Anecdotally, over the years, I would judge that my female friends find your expectation nice and all, but… unrealistic. There’s a window when toxicology can determine that the drink was drugged. There are too many jurisdictions with a months- or years-long backlog of rape kits. Too many travel situations where the plane ticket is 8:00 tomorrow morning and the company isn’t about to accept, “I need to stay over for three days to start a criminal proceeding, then come back multiple times to testify.”

                                      Bell Labs Holmdel was 4,000 people, almost all with a bachelors or higher degree, with company policy that sided with the women. And there was still a list of names that got passed around — a written list, because it was too long to memorize — of men that women should be very, very careful of. I remember quite vividly the time a guy I knew asked me to ask one of the women in my department if she would go out with him. The woman’s answer was, “Oh, hell no. He’s on The List. No woman at the Labs will go out with him.”

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              • This was, weirdly, something that Sullivan pinned a lot of his complaints to: “But, these things didn’t actually happen IN an office, so that means it shouldn’t be on the list!” Donegan made it perfectly clear what the list was for. Sullivan pretended all of that away. It was either entirely baffling to him because the list contained the word Media in it, or he was being absurdly disingenuous because he remains far more concerned with men’s reputations than he is with women’s safety.

                And of course, Sullivan’s objection here is the same old thing when it comes to responding to whatever women have worked out as a way of dealing with a threat. Can’t come forward: Sullivan will cheerlead an angry denial. Can’t keep quiet: Sullivan will insist that this is evidence of dishonesty. Can’t whisper about it: Sullivan will worry for the men. Can’t criticize it: Sullivan will insist that these men were simply clumsy, and not ill-intentioned.

                It’s bullshit that refuses to acknowledge the existence of a full one-half of these equations.

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  4. It sounds to me to be likely a PR move. The suit is filed noisily and publicly, and then later dropped quietly. I feel like I’ve seen this movie before.

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  5. I’ll repeat something I said back in one of the original threads:

    Let’s call the modern legal system a Male System. This has all sorts of various traditions that were hard-won across culture. These include such things as “presumption of innocence” and stuff touched on in the Sixth Amendment like the right to face one’s accuser.

    The Male System has a handful of problems when it comes to stuff like the private felonies mentioned above. Someone grabs your butt in the breakroom… how do you prove this? If there isn’t a camera in the breakroom and there aren’t any witnesses, how could you possibly prove this? It’s a he-said/she-said. Let’s say that the person who did the grabbing has a great deal of power in the company? Look at Weinstein, again. Let’s say that he grabs your butt. Is that someone who you want to accuse in public? He can have you fired, make your life a living hell at work…

    (If you want a recent example of this, Terry Crews says that he’s been pressured to drop his sexual assault lawsuit. It would help “avoid problems”, he says he was told.)

    How do deal with how the Male System Fails? Well, there is also a somewhat Female System. The Grapevine. The Whisper Network. The Writing On The Restroom Stall. “Hey. New Person. If you find yourself in the breakroom with Bob From Accounting, watch yourself. He is a butt grabber.” Write it on the bathroom stall. “Bob from accounting grabs butts.” This Female System helps protect people that The Male System isn’t set up to deal with.

    Indeed, most of The Male System responses to this Female System is to look at it and to complain that The Male System doesn’t have the tools to deal with problems like these. “But what about due process? What about presumption of innocence! What about the right to face one’s accusers, for goodness’ sake!”

    Well, this Female System arose because The Male System doesn’t have the tools to deal with problems like these.

    Well, the Female System goes on trial.

    I think I agree with Doctor Jay above. Maybe this is just intended to be noisily filed and *THAT* is the point.

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    • There is a broader effort here to force women back into more traditional realms where, it is wrongly perceived, they will find the safety that they otherwise do not have in the broader culture. What is being offered is lose/lose with no consideration for anything else.

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    • We’ve always had a bifurcated system like this, but one wonders how long it can last when the consequences are more severe than “nobody will be in the break room alone with me.”

      The whisper network, since it is a network, privileges the connected over the new in town. It privileges elaborate, unfalsifiable performances of pain over verifiable facts. There’s a reason the most severely socially sanctioned men wronged women with social status and visible profiles.

      In fact, the Female System’s bias against disconnected accusers may be the one thing that keeps it from having a disproportionate impact on men of color. In other situations where we discard due process to get a better shot at the pre-ordained “just result,” the losers aren’t white men. Title IX campus tribunals, for example, are disproportionally hard on immigrant and minority accused. Whisper networks only work if the name of the wrongdoer is recognizable; the anonymous, low-level creep just isn’t going to get the same traction.

      I honestly have no idea how to reconsile two systems with glaring mirror-image problems. But someone might, and I’m fairly sure a lot of people will hate it.

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    • At some point the “grapevine” becomes “publishing”.

      Some news person claims there could easily be hundreds of editors on that list… and the observes could be a lot more than that.

      I am not a lawyer but I suspect the rules for putting something on a bathroom wall are different from those if you put it on the front page of the local newspaper (which you print/own).

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      • It’s really not as different as you think. “Publish” has a very broad meaning in defamation law-basically making something known to the community at large. The medium is not determinative.

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  6. Em Carpenter: Then again, one may consider the current climate, in which a man may feel he is better off remaining silent and hoping it blows over than refuting and denying the allegation, and risk being painted as an enemy of women and the MeToo movement and blackballed from his industry more than he may already have been.

    I would also hope that in our current climate if a man were to be accused and actually innocent (thought statistics tell us that’s EXTREMELY unlikely), then once his denials were verified those who accused him would lend an offer of assistance to help restore his reputation. Few industries will actually blackball the powerful over these sort of things (though that may be changing); the less powerful are usually allowed to move on without accountability.

    But to reiterate – given the extremely low statistical probability of a false accusation, I stand with your assessment that fighting carries high risk due to discovery.

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  7. Mike Dwyer:
    In 12 year I had three different female judges tell me that they believed I was giving her a good home and could handle joint custody but that they believed she needed to stay with her mother as a matter of principle. That’s judicial activism and why I voted against all of them.

    I got the same thing from the 5 male judges in two states who presided over my custody issues. Its a baked in presumption in most family law settings and has NOTHING to do with the gender of the judges in question. Judicial activism in most family law courts would have been giving you primary custody.

    Voting for more open minded judges was and is probably a good idea in family court settings since the laws are not really adjusting to the reality of parenting; but dismissing an entire segment of candidates because of their gender and regardless of their records is misogyny Mike.

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  8. Multiple editors have expressed multiple concerns about the comments section of this post, so we’re shutting down the comments section. I’m doing it instead of Will because he’s not able to access the site at the moment, but it was his decision.

    This wasn’t Em’s call, and I don’t think it *would* be her call were it solely up to her, so please no one jump to that conclusion, alright?

    Alright.

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